BEHARI PATAK Vs. MAHOMED HYAT KHAN

JUDGEMENT

(1.) This reference involves the consideration of two somewhat different questions. The first (referred by Loch, J.) is, whether when a party is summoned to show cause under section 282, Code of Criminal Procedure, why he should not be called upon to enter into recognizances to keep the peace, the Magistrate can make an order directing him to enter into the "bond, until be has adjudicated judicially upon evidence properly given, that be is satisfied that it is necessary for the preservation of the peace to take such bond."

(2.) The second (referred by JACKSON and MARKBY, JJ.) is whether when a Magistrate has issued a summons upon credible information under section 282, calling upon a party to show cause why he should "dog be required to enter into a bond to keep the peace, be may, upon the party appearing and failing to satisfy the Magistrate that there was no occasion to bind him over, without taking further evidence, act upon his previous information and make an order under section 288."

(3.) I am of opinion a (an opinion come to with much diffidence, for it is, I understand, opposed to that of my honorable colleagues) that the Magistrate can make such an order, that is that he can call upon a defendant to enter into a bond to keep the peace, without recording evidence in support of the charge in the defendant's presence. 1 do not contend that the Magistrate need not adjudicate judicially," nor does my opinion in the case of Tarinikant Lahori 8 W.R. 79, an opinion the propriety of which is called in question by this reference, go to that length; on the contrary, I think, that the Magistrate's action would in all cases amount substantially to a judicial adjudication, even though no evidence were recorded by him at the time of coming to such adjudication. He would adjudicate, that is on the credible information," on the strength of which be had already summoned the defendant to show cause.